In re Estate of Poldrugovaz
50 A.D.3d 117, 851 N.Y.S.2d 254 (2008)
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Rule of Law:
In an inheritance proceeding, a court may grant a pretrial motion for posthumous genetic marker testing if the non-marital child provides some evidence that the decedent openly and notoriously acknowledged them, and establishes that such testing is reasonable and practicable under the totality of the circumstances.
Facts:
- George Poldrugovaz died intestate (without a will) on December 17, 2003.
- Poldrugovaz was never married and had no other known children; his sole surviving sibling was his brother, William Poldrugovaz.
- Kim M. Rego claimed to be Poldrugovaz's non-marital daughter.
- Rego alleged that Poldrugovaz had acknowledged her as his child in the presence of another person.
- Several acquaintances of Poldrugovaz also submitted affidavits stating that he had openly acknowledged Rego as his daughter.
- After Poldrugovaz's death by electrocution at work, the Office of the Chief Medical Examiner performed an autopsy and retained tissue specimens from his body.
- Rego asserted that she bore a physical resemblance to Poldrugovaz and submitted photographs to support this claim.
Procedural Posture:
- Kim M. Rego filed a petition for letters of administration in the Surrogate's Court, claiming to be the decedent's sole heir.
- In that proceeding, Rego filed a motion to compel the New York City Chief Medical Examiner to release the decedent's tissue samples for genetic testing.
- The decedent's brother, William Poldrugovaz, opposed the motion.
- The Surrogate's Court (trial court) granted Rego's motion for testing.
- William Poldrugovaz, as appellant, appealed the Surrogate's Court's order to the Appellate Division of the Supreme Court, Second Department.
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Issue:
In a proceeding for a non-marital child to establish inheritance rights under EPTL 4-1.2(a)(2)(C), what standard of proof must the child meet to obtain a pretrial court order for posthumous genetic marker testing?
Opinions:
Majority - Skelos, J.
The standard is 'some evidence' of acknowledgment, not clear and convincing evidence. A court may grant a pretrial motion for posthumous genetic marker testing when the applicant provides some evidence that the decedent openly and notoriously acknowledged the nonmarital child as his own, and establishes that the testing is reasonable and practicable. The court overrules its prior decision in Matter of Davis, which improperly imposed the ultimate trial standard of 'clear and convincing evidence' on a pretrial discovery motion. Requiring such a high standard for discovery creates an anomaly, as it could prevent a petitioner from obtaining the very scientific evidence needed to meet that ultimate burden of proof. The lower 'some evidence' standard properly balances the state's interest in orderly estate administration, the privacy interests of the decedent's family, and the nonmarital child's right to access the most reliable evidence of paternity.
Analysis:
This decision resolves a conflict among New York's appellate courts by lowering the evidentiary threshold for non-marital children seeking posthumous DNA testing to establish inheritance rights. By rejecting the 'clear and convincing' evidence standard at the pretrial stage in favor of a 'some evidence' standard, the court makes it significantly easier for such claimants to access definitive scientific proof. The ruling prioritizes the search for truth through reliable evidence over procedural barriers that could block meritorious claims, reflecting a broader legal trend of enhancing the rights of non-marital children. This precedent will likely increase the frequency of court-ordered posthumous genetic testing in estate disputes.
